COMMENTARY

Scuttling Inconvenient Judicial

Appointments
Prashant Bhushan

If there is a message from the

way the appointment of Gopal
Subramanium to the Supreme
Court was scuttled by the
Bharatiya Janata Party-led
National Democratic Alliance
government, it is that the new
government will do its best to
keep out judges who, it feels,
may be inconvenient. It is time
once again for the establishment
of a truly independent and
transparent appointments
commission; but will the
government and judiciary take
the idea forward?

Prashant Bhushan (prashantbhush@gmail.

com) is a public interest lawyer in the Supreme
Court.

12

very trick in the trade will be used

to manage the judiciary. That is
the signal that one gets from the
manner in which Gopal Subramaniums
appointment was scuttled by the Narendra Modi government. Consider the facts:
four names including those of Gopal Subramanium (along with another former
solicitor general, Rohinton Nariman, and
two high court chief justices, Adarsh Goel
and Arun Mishra) had been unanimously
recommended for appointment to the
Supreme Court in early May by the fivemember collegium headed by Chief
Justice of India R M Lodha.
Subramanium Background
Subramanium had been a solicitor general in the United Progressive Alliance
(UPA) government who had resigned because of his differences with the government in the handling of the 2G case.
Subramanium had represented many
important institutions in the country,
including the Central Bureau of Investigation (CBI), in many cases and had
acquitted himself with great distinction.
He had also been appointed as amicus
curiae by the Court in many cases in
which he had invested considerable
amounts of time with great dedication.
One of such cases was the Sohrabuddin
fake encounter case,1 which also came to
involve the fake encounters of his wife
Kauser Bi, as well as Tulsiram Prajapati,
the unfortunate witness to these encounters who was done away with.
The CBI charged Modis right-hand
man, Amit Shah, along with a number of
Gujarat police officers for that encounter. Shah stayed in jail for several
months in that case. When the Supreme
Court eventually granted him bail, Subramanium persuaded the Court to order
that he would not be allowed to be in
Gujarat. It was Subramaniums role in
July 12, 2014

this case which must have made him persona non grata with Modi and his men.
These recommendations for appointment, made in the dying days of the UPA
regime, were not approved by that government which left them to the succeeding government to process the selections. The Modi government lost no time
in asking the CBI and the Intelligence
Bureau (IB) to dig up anything against
Subramanium which could be used to
scuttle his appointment. The IB, ever
willing to do the bidding of its political
masters, was happy to oblige.
One of the gems that they came up
with was that Subramanium has strange
religious practices! Then they discovered his name in the Radia tapes to suggest that he had accepted a complimentary membership of the swimming pool
at the Taj Mahal Hotel in New Delhi
from Niira Radia, the controversial publicist. The other thing they mentioned
was that in the 2G case, Subramanium in
a meeting with CBI officials had also met
a lawyer of Raja.2 These allegations
were then deliberately leaked to select
media outfits by the government to prepare the ground for segregating his
name from the other three recommendations. Though the government could
have sent back Subramaniums recommendation for reconsideration to the
collegium, the government was planning to just sit on his recommendation
while segregating and clearing the rest.
If the government had returned it for
reconsideration, the collegium could
have reiterated the recommendation
and the government would then have
had no option but to appoint him.
Withdrawal of Nomination
As the smear campaign through planted
leaks in the media continued, Subramanium, getting the impression that this
segregation had happened with the
Chief Justices consent, wrote a ninepage letter on 25 June to the Chief Justice of India withdrawing his consent.3
He then gave interviews to various
media organisations, refuting the charges
and innuendos that had been leaked and
planted in the media against him.
vol xlIX no 28

EPW

Economic & Political Weekly

COMMENTARY

The conversations in the Radia tapes

in fact show Subramanium in a favourable light. Referring to Rajas attempt to
participate in the scam, Radia says I am
not sure that he (Subramanium) will
agree to what they say. He is an upright
person. I think Raja will be trying to
get the AG (Vahanvati). Subramanium
pointed out that he had never taken a
complimentary membership of the Taj
Hotel swimming pool, as suggested in
the planted leaks by the government. So
far as meeting Rajas lawyer (before he
was charge-sheeted) in the presence of
CBI officials, apart from innuendos there
was nothing to suggest that he was
trying to do anything improper.
Chief Justice Lodha felt compelled to
publicly speak on this matter on 1 July,
when he disclosed that the segregation
of Subramaniums name from the rest
was improper on the part of the government and did not have his consent. He
said that he would not allow the independence of the judiciary to be compromised, but he was now helpless in
this, since Subramanium had withdrawn his consent.4
Undermining an Independent
Judiciary
This entire episode has revealed the extent to which the Bharatiya Janata Party
(BJP) government would be willing to go
to use all that it can to avoid having inconvenient judges on the bench: in a
word, to try and subvert the independence of the judiciary. The attempt to undermine the independence of the judiciary originated in 1973, after the Kesavananda Bharati5 judgment (which struck
down some constitutional amendments
by saying that the basic structure of the
Constitution could not be amended). The
then prime minister, Indira Gandhi, told
her law minister, Kumaramangalam,
that only those judges who are committed to the ideology of the government
should be appointed to the Supreme
Court. That began the process of supersession of judges (for appointment of
chief justices). At that time, judges were
appointed by the government in consultation with the Chief Justice of India as
provided for by the Constitution. The
government then said that it was not
Economic & Political Weekly

EPW

July 12, 2014

bound by the advice of the Chief Justice.

Successive Congress governments thereafter, especially during the tenure of
law minister, H R Bharadwaj, appointed
judges who had proximity to the government. The saying, that in order to become
a judge it was not important to know the
law but important to know the law minister, became the prevailing wisdom.
The subversion of the independence of
the judiciary by the appointment of convenient judges became a major issue,
especially with increasing corruption
within the executive.
S P Gupta Case and Later
The issue of the manner of appointment
of judges was first raised in S P Guptas
case6 in 1981. The question was whether
the government or the Chief Justice
should have primacy in the matter of appointment of judges, especially because
the independence of the judiciary had
been declared a basic feature of the Constitution. In that case, the majority held
that primacy in judicial appointments
was with the government and it could
disregard the opinion of the Chief Justice
of India in the matter of appointments
and transfers of judges and chief justices.
But as this led to more brazenly partisan
appointments, the issue was referred to
a larger bench for reconsideration.
Finally in 1993, the view in S P Guptas
case was reversed by an innovative judgment in the Supreme Court Advocates on
Records case,7 which wrested the control
in the matter of judicial appointments
from the executive and vested it with the
judiciary. The words in consultation with
the chief justice was interpreted to
mean, with the consent of the chief justice. The meaning of chief justice was
interpreted as a collegium of the Chief
Justice of India plus three senior judges
of the Court. In fact, a new elaborate
procedure was laid out by the Court for
appointment of judges, in which the role
of the government was reduced to returning a name recommended by the
collegium for reconsideration. If the collegium reiterated its recommendation,
the President would have no option but
to go through with the appointment.
High court appointments would also go
through a similar procedure, except that

vol xlIX no 28

the recommendations there would originate from the collegium of the high courts.
In 1998, the Supreme Court further
tweaked its judgment of 1993 in a Presidential Reference on this issue.8 The collegium was widened to five judges. Consultation with other judges in the court who
came from the same high court as the proposed nominee was also provided for. But
the control over the appointments continued to vest with the judiciary.
Lack of Transparency
This system of appointment of judges by
the judiciary did lead to the depoliticisation of the judiciary to a large extent and
did substantially improve its independence. But the process of appointments
was still shrouded in secrecy and with the
control over appointments in the hands
of sitting judges who had little free time
in the midst of their judicial work, coupled with the lack of transparency in such
appointments, led to nepotism and arbitrary appointments. No norms for selection were laid down nor was any system
devised to evaluate various candidates in
the zone of consideration on the basis of
any criteria. No system of inviting any
applications or nominations was devised
either. Thus, the quality of appointments
did not substantially improve even in this
system. The appointments of Justice Soumitra Sen and Justice P D Dinakaran,
who had to resign facing impeachment,
were also products of this judiciarydriven system of appointments.
All this led to the political establishment crying foul and seeking a greater
share of the judicial appointments pie.
There were also serious voices like that
of Justice Krishna Iyer who called this
an incestuous system and a snatching
of appointments by abuse of judicial
power.9 Even Justice J S Verma, the
author of the original judgment, came
to say that he did not anticipate that
his judgment would lead to such poor
appointments by the judiciary.10
Appointments Commission
The Committee on Judicial Accountability11 (a voluntary body of senior lawyers
and retired judges) proposed a bill
for the constitution of a full-time and
independent body called the Judicial
13

COMMENTARY

Appointments Commission for the selection of judges to the high courts and the
Supreme Court. It was proposed that
such a body could be constituted from
among retired judges or other eminent
persons who would be selected in the
following manner: The chairman to be
selected by the collegium of all judges of
the Supreme Court. A second member
by the collegium of all chief justices of
the high courts. A third member by the
union cabinet. A fourth by collegium of
the leaders of opposition of the two
houses of Parliament along with the
Speaker of the Lok Sabha. A fifth by a
collegium of the chief election commissioner, the comptroller and auditor
general and the central vigilance commissioner. Each of these members of
the Judicial Appointments Commission
would have a tenure of five years and
would thus be independent of the government as well as of the sitting judiciary.
This body would be mandated to
function transparently and would have
to publish the persons shortlisted for
appointment for the information of and
comments by the public before the final

selection was made. Being a full-time

body, it would lay down the criteria
for selection and would be mandated
to go about its task in a structured and
rational manner.
Stillborn 2013 Bill
However, neither the government nor the
judiciary were interested in creating an independent full-time body as exists in the
United Kingdom to select judicial appointees. A National Judicial Commission Bill of
201312 was eventually introduced by the
UPA government, which sought to create
an appointments commission in which the
appointments pie was sought to be divided
almost equally between the judiciary and
the government. The proposed commission was supposed to have the three senior-most judges of the Supreme Court
along with the law minister and two eminent persons nominated by a committee
consisting of the prime minister, leader of
opposition in the Lok Sabha and the Chief
Justice of India. Thus, the commission was
still conceived as largely an ex officio body
of people who would have little time to devote to appointments and it also did not

lay down any standards of transparency in

making the appointments. This bill too ran
into a lot of criticism from various quarters, particularly from judges and the legal
community. It was therefore not taken further and has now lapsed with the dissolution of the 15th Lok Sabha.
There is little doubt that the National
Democratic Alliance government will
try to revive the idea or make a similar
proposal soon. It is as unlikely to cede
the power of judicial appointments to
the judiciary alone and is not likely to
support a full-time independent body for
such appointments. Till that happens,
however, the BJP is likely to continue using the technique of just sitting on inconvenient recommendations sent by the
collegium while using its dirty tricks department and hatchet agencies like the
IB to defame the nominee and force him
to withdraw. There is also little doubt
that the BJP, like the Congress, also
wants a committed judiciary.
Notes
1 Rubabbudin Sheikh vs State of Gujarat (AIR
2010 SC 3175).
2 http://timesofindia.indiatimes.com/india/

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COMMENTARY
Centre-cites-2G-probe-Radia-links-to-opposeGopal-Subramaniums-appointment-as-SCjudge/articleshow/36852561.cms
3 http://www.scribd.com/doc/231242651/
Gopal-S ubramanium-letter-to-CJI
4 http://www.thehindu.com/news/national/
government-dropped-gopal-subramaniumsname-without-my-consent-cji/article6167083.ece
5 His Holiness Kesavananda Bharati Sripadagalvaru vs State of Kerala (AIR 1973 SC 1461).

Economic & Political Weekly

EPW

July 12, 2014

6 S P Gupta vs President of India & ors (AIR 1982

SC 149).
7 Supreme Court Advocates on Record Association and Another vs Union of India (AIR 1994
SC 268).
8 In re: Appointment and Transfer of Judges
(AIR 1999 SC 1).
9 http://www.hindustantimes.com/indianews/newdelhi/collegium-system-has-done-

vol xlIX no 28

more-harm-to-judiciary/article1-487366.aspx
10 http://www.thehindu.com/news/national/
collegium-system-not-working-properly-jurists/ article64365.ece
11 http://www.thehindu.com/news/national/
article67521.ece
12 http://www.prsindia.org/uploads/media/
Judicial%20Appointment/Judcial%20appointment %20bill,%202013.pdf

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